The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1887-01-22

. FoE WHARF MAsrER-JOiis H. OK tKARD
May the Executive Appoint ssuntor Cam
bid. denis Successor?
Unnamed, but "eninent lawyers at
Charleston are quoted as saying that III
the event OF the failure Of tho Legislature
to elect successor to Senator Camden the
Governor could not "mnke temporary ap.
poiptment until the next meeting OF the
Legislature" The case Of Phelps is cited
an conclusive Oh this'point.
Samuel s. Phelps was appointed, JGnu.
ary II, 1853; Ivy the Governor Of Vermont,
to fill vacancy happening by tho death
Of William Upham. Phelps took his
seat. The Lseie' ature met and adjourned
without tillin: tho unexpired term.
Phelps held the scat through the whole
OF the second session Of the Thirly.sccond
Congress aud during the following special
50 ,5ion OF tho Senate from March 4 to
April II, In December OF tue same year,
at the opening OF the Tbirty-third Con-
grefs, Phelps again took his seat, und in
the next month, January, 1851, the Gen-
ate Judiciary Committee was instructed
to inQai.e whether he was entitled 10 it.
The committee, composed OF Meesrs
Butler, Toucey, Bsyerd, Geyer, Petit and
Toombs, reported that Phelps was entitled
to his sest. Mfssr1. Butler and Bayafd
submitted minority report tho essential
point Of which WAC that whilo an appoint
luent until the next eession OF the Lsgia-
lature" is construed to mean during the
session or up 10 tho time when Senator
is chosen, those words do not mean ':be-
You'd the meeting OF the Legislature"
that is to asy after its adjournment. The
Sonlts adopted ;ha view Of the minority
IN 4 Phelps was declared not entitled 10
ro.sin his seat.
This is the case OF Phelps. It IL not the
cas- OF Wi!aon or Lucas or Davis or Ann.
strong or Lamb or Of anyone else whom
the executive OF West Virginia may ap-
point temporarily to succeed Mr.. Cam
den in tia event OF tho q: jourDment OF
the Legislature without electlnga lucces-
sor. Mr.. Camden's term expires March
s 1857. II Successor b, not in the mean.
time chosen vacancy will exiet imme-
diGtely upon the expiration Of Mr.. CAM.
den's term. There hes been great deal
OF argument to show that this is
not q vacancy which .'happens" within
the meaning OF the Constitution, hut We
take tLlt question to bo settled sllirma.
lively by wholesome preceps and By the
construction Of practice. John Quincy
Adams eaid that every Office happens to
be vacant which ia not full. Roger B.
fancy spoke to the same efftc:. The
only question 10 be considered in the sup
posilitious cane set up ct Charleston is
whether the execu tive may appoint at the
beginning OF term ''until the next meet
ing OF the Legislature" that body having
failed 10 make provision to fill tho seat.
That which has been done may be done
again, and the latest decision OF the tri-
bunal before which the case would Prise
may be accepted safely as tho law on the
subject. This being true, Bells case is
better than Phelpa's case. 1t is more re.
cent by g quarter OF century, it is in line
with tho decisions in all similar cases, and
it hos been re.aflrmcd in the case Of Blair
and has never been reversed.
By a.chsnge in the Constitution Of Now
Hampshire two Legislatures were chosen
in the year 1878, ono under the old Con.
stitution, in March, whose term Of Office
began in June, 1878, and would end in |
May, 1879; tho other under the new Com
stituton chosen in November to serve Tor
two yoars from June, 1879. Tho term of
cambridge Wad!eigh expired March 8,
1878. The Senate Committee on Priyi-
leges and Elections Of the Forty-liith Con-
gross reported that under tho act
ors 1860 Revised Statutes, Sec. l4)
the Legislature last elected WIS entitled
to choose the Senator. Wadleigh'a term
expired before that Legislature camo into
being. In the. language of the majority
report "the Executive claims tho right to
make temporary appointment ut the ba.
ginning Of term which the Legislature
has not undertaken to fill" and this right
the majority report denied. The minority
report OF Messra. Hosr, CaneIon Of Wis.
consin, and ingalls, inaisted that there is
no distinction indicated between vacan.
cies which happen when tho term begins
and vacancies which happen later. There
can DO no reason suggested Tor such dis
tinction." The minority maintained Bells
right to the seat and the Senate accepted
that view by vote Of So to %. Two
months later the same question aroHe in
the Of Blair, Of the same State, and
was decided in the same way.
In Bells case, and again in that Of 81 ,ir,
much stress was laid upon Lsnman's caeo,
m earlier one than Phelpa's. But Lan.
mans case was decided against him on
tine ground that the Executive OF State
cannot make temporary appointment to
anticipate vacancy. Il waS as though
the Legislature should adjourn Mt the end
Of It's term Of forty-Sve days md tho Ex.
ecutivo should at once appoint successor
to Senator Camden whose term does not
expire until March 3 next. Such appoint.
rnent would undoubtedly DO invalid. But
this is not the proposition. The thing
which is said to be contemplated il sup
ported by an unbroksu line OF presidents.
The ISrELLIdEScSR is unable to find a
single case that seems to stand in the way.
Certainly tho Phelps case does no..